Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4069 November 20, 1907
JUAN JAUCIAN, administrator, appellee,
vs.
ROBERTO FLORANZA, ET AL., appellants.
Carlos Imperial, for appellants.
Ledesma and Sumulong, for appellee.
CARLOS, J.:
This is a motion to dismiss an appeal, allowed by the Court of First Instance of Albay, from two orders made in the course of special proceedings in the administration of the estate of Luis Gamboa, deceased, dated respectively the 22d day of October, 1906, and the 12th day of November, 1906.
The motion is based on the following grounds:
1. Because the application for the appeal was not filed within the time prescribed by law.lawphil.net
2. Because the appeal is improperly brought here by way of a bill of exceptions.
3. Because the appellant has failed to deposit the necessary fees in the clerk's office of the Supreme Court within the time prescribed by the law.
4. Because no assignment of errors appears as of record.
The first ground is the only one which need be considered, as it appears that the necessary registration and filing fees have been deposited; that an assignment of errors appears as of record; and that while it is true that the appeal appears to have been brought here by way of a bill of exceptions, nevertheless the mere matter of form may be disregarded, since all the record which would be brought here in the ordinary course of an appeal in these proceedings appears to be before us. (Sec. 783, Act No. 190.)
On the 30th day of July, 1906, the commissioners of the estate of Luis Gamboa, deceased, filed their report in the Court of First Instance of Albay wherein they set out the names of various creditors of the estate, including that of one Jaucian, whose name appears as a mortgage creditor, with a right to a preference in the distribution of the proceeds of the sale of certain property of the deceased upon which he held a mortgage. On motion to confirm the report, various unsecured creditors opposed its confirmation on the ground that the said Jaucian was not entitled to the preference therein set out, and the matter was taken under advisement by the court. Thereafter on the 22nd day of October, 1906, in the Province of Sorsogon, the judge at that time acting in the Eight Judicial District issued an order directing that proceedings be instituted by the administrator looking to the sale of the mortgaged property mentioned in the report of the commissioners, and the payment of the mortgage debt; and on the 12th day of November, 1906, the same judge, in the Province of Ambos Camarines, issued a further order definitely authorizing and directing the sale of the mortgaged property and payment of the mortgage debt from the proceeds of said sale.
On the 22nd of March, 1907, counsel for Roberto Floranza, one of the creditors of said estate, filed their application for an appeal from these orders, alleging that they had not received notice of the entry of these orders in the clerk's office of the Court of First Instance of Albay until the 17th day of March, when, for the first time, they learned of their existence through a notice of a letter relating to said orders, written by the judge who made them to the judge then presiding in the Eight Judicial District.lawphil.net
There is no evidence in the record that appellants or their counsel ever received written notice of the filing of the orders in question, or that they had actual notice thereof prior to the 17th day of March, 1906, when they admit having learned of their existence.
The question to be determined, therefore, is whether the time within which an appeal may be taken from an appealable order in a special proceeding, made outside the province wherein the proceeding is pending, should be counted from the date when such order is filed or from the date when the party entitled to appeal receives notice thereof. The right to appeal from the orders in question is secured in section 783 of Act No. 190, which is as follows:
Any person legally interested in any other order, decree, or judgment of a Court of First Instance in the exercise of its jurisdiction in special proceedings in the settlement of the estates of deceased persons, or the administration of guardians and trustees, may appeal to the Supreme Court from such order, decree, or judgment, when such order, decree, or judgment constitutes a final determination of the rights of the parties so appealing, and the appeal shall be effected in the manner provided in the two preceding sections: Provided, That no appeal shall be allowed from the appointment of a special administrator.
Section 781 of Act No. 190 limits the time within which an application for such appeal may be filed to a period of twenty days after the entry of the order. It would appear, therefore, that under the provisions of this act the entry of the is taken to be constructive notice thereof to the parties interested.
It will be observed, however, that the orders in question were made beyond the limits of the province wherein the proceedings were had, and not during a regular term of the Court of First Instance of that province. The right to make such orders under such circumstances is conferred under the provision of section 12 of Act No. 867, a distinct and separate act from the act which provides for the appeal. In the very nature of things the entry of an order made under such circumstances can not be taken as constructive notice to the parties interested, so as to deprive them of the right to appeal in the event that, not having actual notice thereof, they failed to file their application for appeal within twenty days after its entry.
It will be contended that, in providing in a separate act for the making of such orders, it was intended to deprive the interested parties of their right to appeal secured them under the general provisions of section 783 of Act No. 190; yet that would be the necessary consequence in many cases, unless it be held that the modification of the procedure under Act No. 190, whereby such orders could only be made within the province wherein the proceedings was had, carries with it, by necessary implication, such modification of the rules of procedure touching the making of such orders and the further proceedings thereon as may be necessary to preserve the substantial rights of the interested parties.
We think that in such cases the period of twenty days within which an application for an appeal may be filed should be and must be counted from the time when the interested parties have received actual notice of the entry of the order.
This view is confirmed by the fact that the legislator, when making provision for the "preparation" of final judgments beyond the province wherein the proceedings were had, provides for actual notice to the interested parties and the extension of the time within which appeals from such judgments may be perfected to a period of twenty days from the receipt of such notice, thereby expressly recognizing the necessity of the modification of the rules of procedure touching the perfection of appeals in such cases. (Sec. 14, Act No. 867.) The necessity for actual notice is at least as imperative in cases were appealable orders are made outside the province wherein the proceedings are pending under the provisions of section 12, Act No. 867, as in cases where final judgments are prepared outside the province under the provisions of section 13 of Act No. 867.
In the case at bar there are some allegations in the record which, if supported by proper proof, would make it appear that counsel for the appellant in this case had actual notice of the making of the orders in question long prior to the date on which they admit they were first notified as to their existence. But there is no proof in the original record to sustain these allegations, nor has such proof been furnished since the case came here on appeal, despite the fact that this court, by order dated the 29th day of August, 1907, expressly authorized the parties to present additional affidavits in support of the "controverted facts in the proceedings." We have accordingly proceeded upon the theory that such proof is not forthcoming and that the allegation of counsel for the appellant as to the date when they first received notice of the making of the orders in question can not be questioned. The motion is denied. So ordered.
Arellano, C.J., Torres, Johnson and Tracey, JJ., concur.
Willard, J., dissents.
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